States began submitting Article V applications in 1789 and have submitted 437 since then. Two hundred seventy-eight applications from 42 states remain in force; and only one state, Hawaii, has yet to pass an Article V application. Thirty-five applications have been submitted by both Republican- and Democrat-controlled legislatures in just the past 5 years. Congress only began tracking applications in 2016 in response to public outcry.
ACF has surveyed a number of aggregation analyses. Here we summarize two by Professor Michael Stokes Paulsen of St. Thomas University, one by attorney Robert Biggerstaff of the Article V Library, one by Professor Robert Natelson of the Independence Institute, one by attorney John Cogswell of Campaign Constitution, and one by ACF.
Paulsen Aggregations: Michael Stokes Paulsen conducted two aggregation analyses, in 1993 and 2011. Of 399 active applications in 1993, Paulsen identified 45 valid applications to justify a Congressional call for a General Convention. His criteria were that an application was valid if (a) it had not been rescinded and (b) it was for a General Convention or recommended a subject but had no exclusionary language. He tagged each state “light on” if it had at least one valid application, “light off” if it had no valid applications. After the study, he notified Congress but was ignored. His second study, in 2011, revealed that many of the 399 applications had been rescinded, resulting in only 33 valid applications—one short of the necessary 34-state threshold.
Biggerstaff Aggregation: Robert Biggerstaff, Curator of the Article V Library dataset, updated Paulsen’s 2011 analysis, adjusting the total to account for three additional states that had rescinded their applications in 2017: Nevada, New Mexico, and Maryland, reducing the total to 30. Since the Convention of States Project (CoSP) describes its application is as a limited subject application, we infer that Biggerstaff deems these applications ineligible for aggregation. The Biggerstaff analysis is available here.
Natelson Aggregation: Robert Natelson of the Independence Institute conducted an aggregation study using the set of 28 Balanced Budget Amendment (BBA) applications as the baseline and then added active general applications. His method produced 33, which included 27 BBA applications (he eliminated one from Mississippi) and added six general applications. However, 26 of the 28 BBA applications have “null and void, if” language that prevents aggregation with any other application. The Natelson report is available here.
Cogswell Aggregation: John Cogswell of Campaign Constitution began with Paulsen’s 2011 aggregation study, updating it with changes that occurred between 2011 and 2018. Three applications had been repealed (Delaware, Nevada, and New Mexico). Cogswell counted five Convention of States Project (CoSP) applications as applications for a General Convention (Alaska, Arizona, Georgia, North Dakota, and Tennessee). While CoSP claims its application is a limited-subject application, it includes amendments that “limit the power and jurisdiction of the federal government.” Cogswell contends that the very purpose of the Constitution is the specification of delegated enumerated powers; thus, he argues that any and all amendments to the Constitution must, by definition, “limit the power and jurisdiction of the federal government.” Hence, Cogswell’s analysis resulted in 36 valid applications.
In addition to reinforcing Paulsen’s and ACF aggregation models for a General Convention, Cogswell provided original contributions to our understanding of Article V, such as the inherent authority of the states based on inalienable rights. His in-depth analysis of application content also emphasized the need for constitutional reform through a variety of “whereas” assertions.
Cogswell also pointed out variations in resolution language among applications for the same limited subject Convention, such as those sponsored by the Convention of States Project. The implication of the latter, from ACF’s perspective, is that these applications use limiting language that make them ineligible to aggregate for a General Convention. Finally, Cogswell concludes that states want and intend an Article V convention, based merely on the volume of applications, of which 278 remain active from 42 states. He asserts that “If Congress refuses to call a convention, . . . we will learn that the tyranny feared by the Framers will have become the cancer they did their best to avoid.”
Cogswell’s opinion is available here.
ACF Aggregation: The ACF aggregation study counted those states with a valid general application, along with those that have an application that specifies a subject but does not contain limiting or exclusionary language. Like Cogswell, ACF had also initially included 7 CoSP applications, thus reaching a total of 37 applications that could be aggregated for a General Convention. ACF then invited peer review from thirty-nine constitutional scholars. Jack Balkin of Yale University responded by connecting ACF with constitutional scholar Michael Stokes Paulsen.
Upon further deliberation, ACF made the determination that inclusion of the CoSP applications in the aggregation could open the door for Congress to make an appeal in federal court to block the inclusion of these applications, their broad language notwithstanding. ACF opted to use the strictest possible aggregation criteria, eliminating those 7 applications and adjusting its total to 30
The Article V Records Transparency Act of 2016. Current data, starting in 1960, are available at http://clerk.house.gov/legislative/memorials.aspx
Paulsen, Michael Stokes, (1993), “A General Theory of Article V: The constitutional lessons of the Twenty-Seventh Amendment,” Yale Law Journal, 103, 677-789.
Paulsen, Michael Stokes, (2011), “How to Count to Thirty-Four: The constitutional case for a constitutional convention,” Harvard Journal of Law & Public Policy, 34, 837-872.
For more information on Campaign Constitution, visit http://www.campaignconstitution.com/